Tuesday, 12 February 2013

A legal analysis in support of Viet Nam’s position regarding the Paracel & Spratly Islands

Nguyễn
Thái Linh

LL.M.(University
of Warsaw, Warsaw, Poland)

Dương
Danh Huy

Translated
by Nguyễn Trịnh Đôn

***

The disputes over the
Paracel and Spratly Islands are among the most prolonged territorial
disputes in the world today, and, from the legal point of view, among
the most complicated. These disputes have dragged on for over a
hundred years in the case of the Paracels and over sixty years in the
case of the Spratlys. Furthermore, the tension resulting from the
disputes has been increasingly escalated. To understand the complex
nature of these disputes, a comprehensive integration of historical,
legal, and political perspectives is required. This essay reviews and
analyses the arguments of the claimants in the light of international
law.

The Paracel Islands are
disputed between Viet Nam, the People’s Republic of China
(hereafter referred to as “China”), and the Republic of China
(“Taiwan”), all of which claim sovereignty over the whole
archipelago.

The dispute over the
Spratly Islands involves Viet Nam, China, Taiwan, the Philippines,
Malaysia, and Brunei Darussalam (“Brunei”). While the first three
claimants assert their sovereignty over the whole archipelago, the
Philippines (since 1951) and Malaysia (since 1978) have claimed parts
of the archipelago, and Brunei has only claimed a single feature
(Louisa Reef, since 1984).

1. Arguments
from Viet Nam

The Paracel and
Spratly Islands have been subject to the sovereignty of Viet Nam by
reason of terra nullius (land not belonging to any sovereign State)
effectively occupied by Viet Nam since the 16th century.

According to
international law, the discovery of a terra nullius itself
does not sufficiently legitimize any legal status for the discovering
State over that territory. To acquire sovereignty over the terra
nullius, a State must effectively occupy that
territory. There are two principles that must be followed to acquire
sovereignty. The first is the principle of actuality, which
requires that the State actually possesses the terra nullius,
considers it as part of the State’s territory, and exercises State
authority and administration over it for a reasonable period of time.
The second is the principle of publicity, which requires that
the possession by a State must be announced to, or acknowledged by,
other sovereign States1.
An individual or a company cannot acquire sovereignty over a
territory.

In addition to the
material (corpus) element, the actual possession also requires
the intentional (animus) element of whether a State wishes to
possess the terra nullius.

To demonstrate its actual
possession of the Paracel and Spratly Islands, Viet Nam asserts the
following arguments:

The States of Viet
Nam knew of the Paracel and Spratly Islands, grouped them together
and named “Đại Trường Sa” (Hán-Nôm: 大長沙
; English: Grand Long Sand), “Hoàng Sa” (黃沙,
Yellow Sand), or “Vạn Lý Trường Sa” (萬里長沙,
Ten-Thousand-Mile Long Sand), and considered them as part of Viet
Nam’s territory.

Throughout more than
three hundred years, from the 16th to the 19th centuries, the States
of Viet Nam had continuousy exercised their sovereignty at least
over the Paracel Islands by frequently sending the Flotillas of
Hoàng Sa and Bắc Hải to the archipelago, which would stay there
for several months every year for surveying and exploiting resources
in a systematic manner. Personnel from these flotillas collected
goods from wrecked ships, built temples, planted trees to symbolize
the State’s sovereignty, collected taxes, and provided assistance
to foreign ships in danger. These activities by the Vietnamese
States were totally free from any opposition or disputes from other
countries, including China, and contained both the corpus and
animus elements of an actual possession.

Viet Nam uses official
documents from the 17th century to support these arguments. These
include Đại Nam thực lục tiền biên (1600–1775)
(大南實錄前編,
The Early Chapter of The Chronicles of Đại Nam), Toản tập
Thiên Nam tứ chí lộ đồ thư (1630–1653) (纂集天南四至路图書,
The Collection of the South’s Road Map), Phủ biên tạp lục
(1776) (撫邊雜錄,
Miscellany on the Pacification at the Frontier), Đại Nam thực
lục chính biên (1848) (大南實錄正編,
The Main Chapter of The Chronicles of Đại Nam), Đại Nam nhất
thống chí–the combinatorial record for geography and history
of Đại Nam (1865–1882) (大南ー統誌,
The Record of The Unified Đại Nam), Hoàng Việt dư địa
chí (1833) (皇越輿地誌,
Geography of The Viet Empire), Việt sử thông giám cương
mục khảo lược (1876) (越史通鑑綱目考略,
Outline of The Chronicles of The Viet History), official documents of
the Nguyễn Dynasty on petitions and imperial decrees, and many maps
and documents made by other countries at that time2.

Jaseniew Vladimir and
Stephanow Evginii, in their 1982 book entitled “The Chinese
Frontiers: From Traditional Expansionism to Present Hegemonism”,
listed the activities by the Vietnamese States in continuously
exercising their sovereignty over the Paracel and Spratly Islands,
and emphasized that “feudal States of Viet Nam had for long annexed
archipelagos such as the Paracels and the Spratlys into their State’s
territory”3.

France, after
imposing its protectorate over Viet Nam, represented Viet Nam in
exercising and maintaining Viet Nam’s sovereignty over the
archipelagos.

In 1899, then
Governor-General of Indochina Paul Doumer submitted a proposal to the
Government of France to build a lighthouse in the Paracel Islands.
Financial difficulty, however, prevented this plan from being
realized.

On March 8, 1925, the
Governor-General of Indochina affirmed that the Paracel Islands were
part of French territory4.
Surveillance and research trips thus had been organized in the
Paracel Islands since 1925 and in the Spratly Islands since 19275.

In 1930, the French
authorities in Indochina sent a mission group to set up a flag pole
in the Spratly Islands. Since then until 1933, French naval units
established garrison in the main islands of the archipelago,
including Spratly (Trường Sa) (April 13, 1930), Amboyna Cay
(An Bang) (April 7, 1933), Itu Aba (Ba Bình) (April
10, 1933), the Two-Island Group including Southwest and Northeast
Cays (Groupe des Deux Iles, Song Tử) (April 10,
1933), Loaita (Loai Ta) (April 11, 1933), and Thitu (Thị
Tứ) (April 12, 1933), together with small islets/cays
surrounding these islands. These occupation activities were
proclaimed in the July 26, 1933 Official Gazette of the French
Republic and the September 25, 1933 Official Gazette of Indochina,
and did not meet any opposition from China, the Philippines, the
Netherlands (which occupied Brunei at that time), or the United
States of America. The United Kingdom of Great Britain and Northern
Ireland required explanation for these activities and was satisfied
with the response from France6.

On December 2, 1933,
Governor of Cochinchina (Nam Kỳ) J. Krautheimer incorporated
the Spratly Islands into the Province of Bà Rịa.

On March 30, 1938,
Emperor Bảo Đại issued his imperial edict to incorporate the
Paracel Islands into the Province of Thừa Thiên. On June 15, 1938,
the Governor-General of Indochina Jules Brévié issued a decree on
establishing an administrative unit in the Paracel Islands. The
French authorities then effectively occupied the whole archipelago
with a permanent guard unit. In 1938, a sovereignty stele was erected
with the inscription of these words: “The French Republic –
The Kingdom of An Nam – The Paracel Islands, 1816 – Pattle Island
– 1938”. A lighthouse, a meteorological station, and a radio
station were also set up on Pattle Island5.

Japan occupied the
Spratly Islands in 1939, re-named the archipelago as Shinnan Shoto
(新南諸島,
the New Southern Islands), and put under the jurisdiction of
Kaohsiung (Taiwan). France subsequently sent a diplomatic note to
oppose this military action by Japan and re-affirmed that the Spratly
Islands were part of An Nam’s territory without any opposition from
China7.

Immediately after Japan
surrendered in 1945, the French authorities restored their presence
in the Paracel and Spratly Islands. In June 1946, a subunit of the
French armed forces landed to re-occupy the Paracel Islands. In
October 1946, the French battleship Chevreud arrived in the Spratly
Islands and installed a sovereignty stele on Itu Aba Island8.
When the Republic of China sent its troops to occupy Itu Aba Island
in late 1946, France also opposed the action and demanded China’s
withdrawal from the archipelago.

In summary, as the
protecting power representing Viet Nam’s interests, France did not
abandon but maintained the sovereignty of Viet Nam over the Paracel
Islands without any interruption. In the Spratly Islands, France
considered the archipelago as a terra nullius and conducted
its effective occupation with the knowledge of other States and
without any noticeable opposition from them.

Viet Nam’s
sovereignty over the two archipelagos has been continuously exercised
and maintained since France left Indochina.

With the Hạ Long Bay
Treaty of 1949, France transferred the sovereignty of Cochinchina,
which included the Spratlys, to Viet Nam. On October 14, 1950 the
government of France officially handed over the control of the
Paracels to Viet Nam’s Bảo Đại Administration.

On September 7, 1951,
during the seventh session of the San Francisco Conference on the
Treaty of Peace with Japan, Prime Minister and Foreign Minister Trần
Văn Hữu of the State of Viet Nam officially affirmed Viet Nam’s
sovereignty over the Paracel and Spratly Islands. His statement did
not meet with any objection or reservation of opinion from any of the
51 States attending the Conference. The Soviet Union requested an
amendment that envisaged the recognition by Japan of the sovereignty
of the People's Republic of China over a series of territories
including the Paracels and the Spratlys. This amendment was rejected
by 46 of the countries present, only Poland and Czechoslovakia
supported the Soviet request. Neither China nor Taiwan attended the
Conference7. China,
however, reserved their demand over the two archipelagos in the
statement of August 15, 1951 by Foreign Minister Zhou Enlai.

After the partition of
Viet Nam by the 1954 Geneva Accords, administration of the Paracel
and Spratly Islands was placed under the Republic of Viet Nam (RVN,
South Viet Nam). Immediately after the last French troops’
withdrawal on August 22, 1956, the Republic of Viet Nam promptly
established its control over the Paracel and Spratly Islands, and
faced challenges from China, which disputed the archipelagos9.

The RVN regime, as a
successor to the French authorities for legal titles, rights, and
demands in the Paracel and Spratly Islands, had continuously
exercised its administration, surveillance, exploitation, and defence
over the two archipelagos through a series of actions such as
erecting flag pole and sovereignty stele in the Spratly Islands
(August 1956), incorporating the Paracel Islands into the Province of
Quảng Nam (July 1961), affirming sovereignty over the two
archipelagos by a statement of the Ministry of Foreign Affairs (July
15, 1971), incorporating the Spratly Islands to the Province of Phước
Tuy (September 1973), granting license for guano collection, and
detaining China’s troops who were disguised as fishermen in an
attempt to occupy the western group of the Paracel Islands (February
1959).

China’s complete
occupation of the Paracel Islands by military forces in January 1974
was strongly opposed by RVN, which took every opportunities to affirm
its sovereignty, including sending letter to demand an intervention
from the President of the United Nations General Assembly and the
Secretary-General of the United Nations, issuing statements to
re-affirm sovereignty at the meeting in March 1974 of the Economic
Commission for the Far East (precursor of the Economic and Social
Commission for Asia and the Pacific) and the Third United Nations
Conference on the Law of the Sea (July 1974), and proclaiming the
White Paper on the Paracel and Spratly Islands (February 1975).

The Socialist
Republic of Viet Nam is the successor of the two prior States and has
had all legal titles over the Paracel and Spratly Islands since July
2, 1976.

As part of its exercise
of sovereignty, in December 1982 Viet Nam established Hoàng Sa
District (huyện) under the Province of Quảng Nam–Đà
Nẵng for the Paracel Islands, and Trường Sa District under the
Province of Đồng Nai for the Spratly Islands. Hoàng Sa and Trường
Sa Districts are currently under the jurisdiction of the City of Đà
Nẵng and the Province of Khánh Hoà, respectively. Viet Nam has
also maintained permanent troops in the Spratly Islands.

In addition, Vietnamese
top officials have paid several visits and joined surveillance trips
to affirm Viet Nam’s sovereignty in the Spratly Islands. These
include a series of visits in May 1988 by Minister of Defence Lê Đức
Anh, Vice-Chairman of the State Council Nguyễn Quyết, and Chief
of the Armed Forces’ General Staff Đoàn Khuê. More recent visits
of top officials include those by Member of the Politburo of the
Communist Party of Viet Nam (CPVN) Phạm Thế Duyệt (April 1998),
and former Secretary-General of CPVN Lê Khả Phiêu (November
2011).

Although the Paracel
Islands have been completely occupied by China’s troops since 1974,
Viet Nam maintains all its legal titles over the archipelago. The
most recent assertion of sovereignty by Viet Nam is a statement by
Prime Minister Nguyễn Tấn Dũng in a televised testimony at the
National Assembly on November 25, 2011 in which he said that Viet Nam
has had sovereignty over the Paracel and Spratly Islands at least
since the 17th century, and that Viet Nam seeks to resolve the
sovereignty dispute through peaceful means according to international
law.

2. Arguments
from China and Taiwan

As China and Taiwan share
the same arguments about the Paracel and Spratly Islands, they can be
presented together as follows.

China was the first
country to discover and occupy the Paracel and Spratly Islands as
terra nullius

China asserted that it
was the first country to find the archipelagos, and this discovery
was made as early as the reign of Emperor Wǔ of the Hàn Dynasty
(2nd century BCE)10.
This argument, however, is not backed up by official historical
documents. On this issue, Nguyễn Hồng Thao commented that “most
of these documents are travel accounts, monographs, and navigation
books demonstrating knowledge of ancient people about territories
belonging to not only China but also other countries”9.
Moreover, in these documents, the territories which China now claims
to be the Paracels and Spratlys are named inconsistently, thus there
are no convincing arguments that those territories are really the
Paracels and Spratlys5.

Moreover, the
aforementioned assertion from China contradicts the encyclopedia
Gǔjīn Túshū Jichéng (古今圖書集成,
Complete Atlas on the Past and Present) completed by the Qing Dynasty
in 1706. None of the maps in Zhífāng Diăn
(職方典,
Dictionary of Administrative Units) of this encyclopedia, including
Zhífāng Zŏngbùtú (職方總部圖,
General Map of the Administrative Units, Number 1), Guăngdōng
Jiāngyùtú (廣東疆域圖,
Territorial Map of Guăngdōng, Number
157), and Qióngzhōufǔ
Jiāngyùtú(琼州府疆域圖,
Territorial Map of Qiongzhou Prefecture, Numer 167), indicate any
archipelagos farther to the south than Hainan Island. The islands
depicted in Guăngdōng Tōngzhì
(廣東通志,
Annals of Guăngdōng), made during the
reign of Emperor Jiājìng of the Ming
Dynasty (1522–1567), also do not go beyond Qiongzhou (i.e.
Hainan)11.

The
finding of ancient money and goods dated back to the Wáng Măng (王莽)
Era (9–23 CE) is also used as archaeological evidence by China to
support the early presence of its fishermen in the archipelagos.
However, even if these pieces of evidence are valid, Chinese
fishermen’s early presence was merely private/individual activities
and thus cannot constitute an effective occupation by a State as
required by international law.

China also claims
sovereignty over the archipelagos by asserting the following events:

The Sòng Dynasty
(960–1127) sent its military patrols to the Paracel Islands’
area. This assertion is based on Wǔjīng Zŏngyào (武经总要,
Military General Records) with a prologue written by Emperor
Rénzōng5. However,
according to Monique Chemillier-Gendreau, this record merely
indicates that there were geographical surveillance trips by the
Chinese that went as far as the Indian Ocean, and that China knew of
the Paracel Islands. The document, however, does not demonstrate any
possession.

In the 13th century,
emperors of the Yuán Dynasty ordered the astronomer Guō Shŏujìng
(郭守敬)
to conduct astronomical observations in many areas, including the
Paracel Islands. However, Guō’s observations performed both
inside and outside of China, was only astronomical research
activities and thus could not legitimize any sovereignty status over
the the territories from which the observations were made.

Wu Sheng (吳升),
Guangdong navy’s rear-admiral, commanded a patrol to the Paracel
Islands in 1710–1712. However, according to Monique
Chemiller-Gendreau, this was in fact a patrol around Hainan Island
and did not go as far as the Paracels.

The local government
of Guangdong opposed a German ship conducting research in the
Spratly Islands in 1883. This opposition, however, was only a
diplomatic action and did not have any legal status as China’s
sovereignty had not been established9.

Therefore, historical
evidence used by China to support its claim is insufficient and weak
according to international law. These pieces of evidence do not
demonstrate any occupation, effective administration, or
sovereignty12. As far
as the effective occupation of the Paracel and Spratly Islands as
terra nullius without protests from other States are
concerned, Viet Nam’s arguments are stronger than those of China13.

China’s arguments
regarding the period from early 20th century to 1945

It was not until the
beginning of the 20th century that China showed any real efforts in
occupying the Paracel Islands. In 1909, Admiral Lǐ Zhǔn (李准)
commanded a small-scale landing (over a period of 24 hours) in the
Paracel Islands. His troops raised their flag and fired their guns to
mark China’s sovereignty5
(which raises the question of why Lǐ Zhǔn’s fleet acted as if
this was the first time the islands were discovered despite China’s
claim to have possessed them long before?)

In 1921, the
self-proclaimed Guăngzhou Military Government annexed the
administration of the Paracel Islands to Yái (崖)
District. This action did not meet any response as the Guăngzhou
Military Government was not recognized by any countries in the world.

In 1937, Japan occupied
the islands offshore of Indochina despite the opposition from the
French authorities, renamed them to “Shinnan Shoto”, and put them
under the jurisdiction of Kaohsiung (Taiwan), which China had ceded
to Japan in the Treaty of Shimonoseki of 1895. Japan maintained its
occupation in the South China Sea’s archipelagos throughout World
War II.

In summary, with a
limited effort in early 20th century to demonstrate its sovereignty
in the Paracel Islands, China neither actually and continuously
occupied nor effectively established administration over the
archipelago. At the same time, China had absolutely neither influence
nor interest in the Spratly Islands and did not protest when Japan
claimed and occupied them. In contrast, France was the only country
to protest. An irrefutable evidence of China not considering the
Spratlys to be its territorry was China’s diplomatic note to France
in September 1932 claiming that the Paracels “form the southernmost
part of Chinese territory” 5.

China’s arguments
regarding the period after 1945

After Japan’s surrender
in 1945, it withdrew troops from mainland and all archipelagos of
Indochina. France promptly restored its presence in the Paracel
Islands in June 1946. In July 1947, the Republic of China sent its
troops to Woody Island in the Paracels. In response, France opposed
this illegal occupation by China and sent a military unit to the
Paracel Islands to set up a garrison and built a meteorological
station which would be in operation for the next 26 years until the
People’s Republic of China used military force to occupy the
archipelago in 1974.

At the end of 1946, the
Republic of China sent its troops to occupy Itu Aba Island in the
Spratlys after France had erected a sovereignty stele. The Chinese
Civil War’s conclusion and the proclamation of the People’s
Republic of China in October 1949 forced the Republic of China’s
troops to leave Woody Island in the Paracels and Itu Aba Island in
the Spratlys while the French garrisons were maintained.

In April 1956, French
forces were withdrawn from Indochina, and in the Paracels were
replaced by the Republic of Viet Nam’s troops (South Viet Nam). At
the same time, the People’s Republic of China’s troops secretly
landed and occupied Amphitrite Group in the eastern part of the
Paracel Islands5. On
September 4, 1958, China issued a statement on its
twelve-nautical-mile territorial waters, including around both the
Paracel and the Spratly Islands. On January 19, 1974, China used its
military forces to occupy completely the Paracel Islands. Until then,
the Spratly Islands “were completely out of China’s influence,
let alone China’s intention to control them”7.
In February 1988, China sent troops to some islands in the Spratlys,
and a month later, seized six islands from Viet Nam5.
All of these events make China a unique claimant in the Spratly
Islands for its exclusive claim over the whole archipelago and its
absolute lack of control in reality until 19887.

China then established
its 33rd province including Hainan Island, the Paracels, and the
Spratlys in April 1988, occupied one more small island in the Spratly
Islands in May 19895,
and seized Mischief Reef of the Philippines in February 1995.

China’s main approach
to seize control over the islands is to use military force, an
approach which has been condemned by international law since early
20th century. The Declaration on Principles of International Law
Concerning Friendly Relations and Co-operation among States in
Accordance with the Charter of the United Nations, adopted on October
24, 1970, also states explicitly that “The territory of a State
shall not be the object of military occupation resulting from the use
of force in contravention of the provisions of the Charter. The
territory of a State shall not be the object of acquisition by
another State resulting from the threat or use of force. No
territorial acquisition resulting from the threat or use of force
shall be recognized as legal”. The use of military force is
therefore against international law and cannot legitimize any legal
status for China in the Paracel and Spratly Islands.

China’s use of
statements by the Democratic Republic of Viet Nam

China maintains that Viet
Nam recognized China’s sovereignty over the Paracel and Spratly
Islands during the Viet Nam War by statements of the Democratic
Republic of Viet Nam (North Viet Nam) including:

A verbal expression
by Deputy Foreign Minister Ung Văn Khiêm on June 15, 1956 to a
standing member of the Embassy of China in Ha Noi that these
archipelagos are part of China’s territory in terms of history.
However, China fails to provide the meeting’s minutes that
contains this expression by Deputy Foreign Minister Khiêm14.
It should also be noted that, according to international law, deputy
foreign ministers do not by default have the authority to represent
a State in such matters.

A diplomatic note by
Prime Minister Phạm Văn Đồng on September 14, 1958 in which
China’s claim of twelve-nautical-mile territorial sea was said to
be approved without any reservation of opinion regarding the Paracel
and Spratly Islands.

On May 9, 1965, in
response to the the escalation of the Viet Nam War and the
establishment of tactical zones in the South China Sea by the United
States, the Democratic Republic of Viet Nam’s newspaper Nhân
Dân (The People) stated that the Paracel Islands were
under the sovereignty of China. It should be noted that, according
to international law, newspapers are not considered representatives
of a State.

Whether these statements
has legal implications for the Socialist Republic of Viet Nam’s
sovereignty over the Paracel and Spratly Islands will require further
studies in international law. However, the author would like to offer
a perspective on these statements as below.

During the Viet Nam War
(1954–1975), there were two States co-existing in Viet Nam, namely,
the Democratic Republic of Viet Nam (DRVN) in the North, and the
Republic of Viet Nam (RVN) in the South. The co-existence of these
two States is agreed upon by many leading international laywers, such
as James Crawford, Robert Jennings, Nguyễn Quốc Định, Jules
Basdevant, Paul Reuter, Louis Henkin, and Grigory Tunkin14.

Acccording to the DRVN
and the RVN’s understanding of the 1954 Geneva Accords, and to the
de facto administration, it was the RVN, and not the DRVN, which
was the successor to the Vietnamese titles over the Paracel and
Spratly Islands. As mentioned above, the RVN had continuously
controlled, exercised administration, and affirmed sovereignty until
China’s occupation of the Paracel Islands by force in 1974, and
until the Provisional Revolutionary Government of the Republic of
South Viet Nam’s takeover of the Spratly Islands in 1975.

First, given that it was
the RVN, and not the DRVN, which was the successor to the Vietnamese
titles over the Paracel and Spratly Islands, the DRVN did not have a
duty to defend these titles (therefore its silence cannot be
interpreted acquiescence of these titles) and, furthermore, it was
not in dispute or negotiation with any other State over these
archipelagos (statement by the DRVN cannot be said to be made in the
context of a dispute or negotiation between it and another State).

Second, the 1958
diplomatic note of the DRVN’s Prime Minister Phạm Văn Đồng
and other DRVN’s statements on the issue did not affect RVN’s
titles over the archipelagos. Any legal obligation that might arise
from the DRVN’s statements could only apply to the DRVN, not to the
RVN.

Third, let us
considerwhether the DRVN’s statements gave rise to any binding
obligations for itself? The statements made by DRVN on the issue are
unilateral ones. According to international law, to determine whether
a unilateral statement might give rise to binding obligations, three
main conditions must be considered, namely,

(1) the context in which
the statement was made;

(2) whether the
unilateral statement is explicit, and whether the party making the
statement explicitly expresses the intention that it wishes to be
bound by its own statement; and

(3) whether there has
been detrimental reliance for the other party, i.e., damage or loss
caused by that party’s reliance on the unilateral statement.

In addition, judgements
by the International Court of Justice require that the unilateral
statements are made continuously over a prolonged period of time for
it to give rise to binding obligations15.

It is not difficult to
see that all of the DRVN’s statements on the issue lack most of
these prerequisite conditions, and therefore did not give rise to any
binding obligations for the DRVN. First, these statements were not
made in the context of the DRVN and China contesting the Paracels and
Spratlys with each other. Second, the only authoritative statement
from the DRVN – the diplomatic note by Prime Minister Phạm Văn
Đồng, did not say anything explicit about the Paracels or
Spratlys. Third, China has not taken any actions that could be said
to be detrimental reliance on the DRVN’s statements.

In summary, as the
successor State to the DRVN and the RVN (and subsequently the
Provisional Revolutionary Government of the Republic of South Viet
Nam) since 1976, the Socialist Republic of Viet Nam (SRVN) succeeded
to both the sovereignty of the Paracel and Spratly Islands from the
RVN and the unilateral, non-binding statements from the DRVN. Since
the latter is non-binding, the SRVN is free to choose to uphold the
former. The re-unified Vietnamese State, therefore, has full legal
basis to assert its sovereignty over the Paracel and Spratly Islands.

3. Arguments
from other countries

The Philippines

The Philippines claims
over about 60 islands, reefs, and submerged banks in the Spratly
Islands16. The first
assertion was made in 1947 by Tomás Cloma, a Philippine citizen,
when he claimed to have discovered a group of islands and reefs 300
nautical miles to the west of Palawan Island.

On May 17, 1951, the
President of the Philippines claimed that islands in the Spratlys
should belong to the closest territory, which is the Philippines9.
This claim was opposed by the other countries.

It was not until March
1956 that Tomás Cloma resumed his “work to discover” these
islands. He sent a group of 40 sailors to land on many islands in the
Spratlys to mark their possession. The flag of the Philippines was
raised on some islands including Itu Aba17.
On May 11, 1956, they proclaimed Kalayaan (Freedom-land) as the new
official name of the islands and Tomás Cloma as the President of the
Supreme Council of the State of Kalayaan7.
This proclamation was opposed by all relevant countries10.

Tomás Cloma sent a
letter dated May 15, 1956 to the Republic of the Philippines’
Minister of Foreign Affairs to announce that he and his group had
occupied a 64,976-square-mile area to the west of Palawan Island,
that this area was outside of Philippine territorial waters and was
not subject to the jurisdiction of any countries, and that this area
had been found and effectively occupied as a terra nullius. He
also included with the letter a map of his claimed area. Although the
names of these islands were completely changed, Cloma’s map
indicates that the Kalayaan area includes most of islands in the
Spratlys8.

The Philippines’
Minister of Foreign Affairs subsequently declared in a press
conference on May 19, 1956 that the islands in the Spratlys including
Itu Aba and Spratly are subject to the Philippines’ sovereignty as
they are closest to the Philippines. This declaration met with
objections from Sai Gon, Beijing, and Taiwan. When Taiwan showed its
intention of deploying troops to the Spratly Islands, Manila promptly
sent a notice to Taiwan and South Viet Nam and said that it had not
officially claimed sovereignty over the area.

On July 6, 1956, Tomás
Cloma sent a letter to the Philippines’ government to ask that
Kalayaan become a protectorate of the Philippines. In his response,
the Philippines’ Minister of Foreign Affairs stated that any island
in the area that is not within the group of seven islands referred to
as “the Spratly Islands” by international community can be
considered as terra nullius, and thus can be freely exploited
and inhabited by citizens of the Philippines or any other countries.
To retaliate against the activities by Tomás Comas, South Viet Nam
sent a patrol ship to the Spratly Islands in August 1956.

The first clash between
Taiwan’s navy and Tomás Cloma’s group occurred on October 1,
1956 in North Danger Shoal. Tomás Cloma’s group ended up having
all their weapons stripped while the Philippines’ government did
not intervene.

During
1970–1971, President Ferdinand Marcos ordered the Philippines’
navy to occupy some islands in the Spratlys including Thitu, Nanshan,
and South Rock. The Philippines also organized patrols in many small
islands and reefs in the northeast of the archipelago7.
After the Philippines attempted once more but failed to occupy Itu
Aba Island in 1971, it continued to object to Taiwan’s occupation
of the island with three arguments, namely, (1) the Philippines’
sovereignty over the islands based on Tomás Cloma’s
discovery of terra nullius, (2) de facto occupation
without notice by China of many islands under the jurisdiction of the
Allies, and (3) the Philippines archipelagic waters containing the
Spratlys10. The
Philippines also expanded its occupation to 1,000 troops and built an
airport on Thitu Island. Tomás Cloma transferred the “sovereignty”
of the islands to the Philippines’ government in 1974. By that
time, the Philippines had acquired control over four islands in the
Spratlys.

In 1978, the Philippines
deployed troops to seven islands in the Spratlys. The President of
the Philippines then signed Decree 159612
on June 11, 1978 to annex these seven islands to the Philippines’
territory. The decree also states that “these areas do not
legally belong to any state or nation but, by reason of history,
indispensable need, and effective occupation and control established
in accordance with the international law, such areas must now deemed
to belong and subject to the sovereignty of the Philippines”,
and that a 200-nautical-mile economic exclusive zone was set for
these islands10.

In a press conference on
September 14, 1979, the President of the Philippines stated clearly
that his country would maintain its claim over the seven islands that
it occupied but not all of the Spratly Islands. The Philippines’
President also re-affirmed that these seven islands had never been
occupied, known of, inhabited, or even marked in any maps before
World War II, and they had thus been terra nullius until the
Philippine’s occupation.

On March 10, 2009, the
President of the Philippines promulgated Republic Act 9522 to define
the archipelagic baseline of the Philippines, in which most of the
Spratly Islands was included in the Philippines’ regime of islands.
China quickly objected while Vietnam re-asserted its claims to the
Spratlys but did not mention the Act specifically.

Arguments from the
Philippines, in general, do not have a solid basis. The Philippines
maintains that the islands it claimed were terra nullius. Even
if we ignore those events in the Spratlys in previous centuries, the
Spratly Islands were effectively occupied since 1930 by France
(French troops had been on Thitu Island since April 1933) and
transferred to Viet Nam without objection from any countries
including the Philippines when France left Indochina. Also, the claim
that these islands should belong to the Philippines on the basis of
proximity is not supported by international law. Moreover, the
Philippines’ occupation and claim in the Spratly Islands have been
opposed by relevant countries from the beginning. Therefore, the
involvement of the Philippines in these islands cannot constitute an
effective occupation without disputes as required by international
law.

Malaysia

In 1978, Malaysia made
its first claims for sovereignty over Amboyna Cay, Mariveles Reef,
and Commodore Reef on the basis that these features lie on its
continental shelf. The 1979 map of Malaysia depicted some islands in
the Spratlys as Malaysia’s territory.

Malaysia started its
first military occupation in June 1983 by taking control of Swallow
Reef, which is within its claimed area. In September 1983, Malaysia
officially declared its intention to occupy James Shoal, Swallow
Reef, Ardasier Reef, and Mariveles Reef, and asserted that these
islands/reefs lie within Malaysia’s “marine economic zone”7.
In December 1986, Malaysia’s troops occupied Mariveles and Ardasier
Reefs. In June 1999, Malaysia expanded its occupation to a total of
seven islands/reefs/shoals by taking control over Erica Reef and
Investigator Shoal.

In general, Malaysia
cites the international law’s regulations of continental shelf to
support its claim in the Spratly Islands. However, Article 76 of the
1982 United Nations Convention on the Law of the Sea (UNCLOS) defines
clearly that: “The continental shelf of a coastal State
comprises of the seabed and subsoil of
the submarine areas that extend beyond its territorial sea
throughout the natural prolongation of its land territory to the
outer edge of the continental margin, or to a distance of 200
nautical miles from the baselines from which the breadth of the
territorial sea is measured where the outer edge of the continental
shelf does not extend up to that distance”. This definition
does not govern the above water islands/reefs/cays on the
continental shelf and thus cannot provide legal ground for Malaysia’s
claims, which already lack historical grounds.

Brunei

Brunei only claims Louisa
Reef based on the argument that this reef is within its exclusive
economic zone.

Article 56 of the 1982
UNCLOS, however, only acknowledges that a coastal State has (1)
“sovereign rights for the purpose of exploring and exploiting,
conserving and managing the natural resources, whether living or
non-living, of the waters superjacent to the seabed and of the seabed
and its subsoil, and with regard to other activities for the economic
exploitation and exploration of the zone, such as the production of
energy from the water, currents, and winds”, and (2)
jurisdiction to establish and use artificial islands, installations
and structures for marine scientific research, and protection and
preservation of marine environment. The use of UNCLOS to claim
sovereignty over islands within the exclusive economic zone is an
aberrant interpretation of the Convention. Therefore, the argument
from Brunei, similar to that of Malaysia, is unconvincing.

The legal question in
this case is whether Louisa Reef can be considered as an island. This
question is critical because a State can only claim and acquire
sovereignty over islands (defined by article 121 of UNCLOS as a
“naturally formed area of land, surrounded by water, which is
above water at high tide”). If Louisa Reef is submerged or is a
low tide elevation then neither Brunei nor any other countries can
claim sovereignty over it18,19,
and Brunei can only claim certain restricted rights as prescribed by
UNCLOS. And if this is the case, we shall have to resolve the
question of whether Louisa Reef lies within Brunei’s exclusive
economic zone or that of Viet Nam or Malaysia.

CONCLUSION

In
the light of international law, the above comparative analysis of
perspectives from different claimants of the Paracel and Spratly
Islands reveals that the most logical and best-supported arguments
are those of Viet Nam. In reality, however, the prolonged and
complicated nature of disputes in area, as well as the involved
parties’ intention, make dispute resolution through legal means a
very difficult approach. Instead, an integration of legal,
historical, political, and economic solutions is needed to resolve
the issue. And any resolution for the South China Sea’s dispute
would require efforts and good will of the involved parties,
particularly China, which has been objecting to any proposal by Viet
Nam to bring the Paracel and Spratly Islands’ issue to the
International Court of Justice.

Nevertheless,
the legal perspective of the issue is still of vital importance.

-------

Aknowledgement

The author wishes to
thank Drs. Nguyễn Đức Hùng, and Lê Vĩnh Trương for their
comments and discussion.

Kuang-Minh Sun (1990/1991). Dawn in the South China Sea? A
Relocation of the Spratly Islands in an Everlasting Legal Storm.
South African Yearbook of International Law, University of South
Africa. Vol. 16.